Almasri case: Justice Minister more constrained by time constraints

The Minister of Justice must immediately forward to the Prosecutor General of the Rome Court of Appeal any requests for cooperation made by the International Criminal Court. Unless he considers that they would compromise overriding constitutional principles. The Constitutional Court, in its ruling No. 143, filed yesterday, upholds the questions of constitutionality raised by the Rome Court of Appeal in the case of the highly contested repatriation of the Libyan officer Almasri, who is the subject of a warrant issued by the judges in The Hague.

In the view of the Rome Court of Appeal, the Italian legislation implementing the Statute of the International Criminal Court (Articles 2 and 4 of the Law of 20 December 2012, No. 237) do not permit the Chief Public Prosecutor of Rome, where the Minister of Justice has not forwarded the documents, to comply with a request for cooperation – such as in the case of the execution of an arrest warrant – whilst subsequently informing the said Minister. This prohibition does not cease to apply even when the request for cooperation has nevertheless reached the Italian judicial authorities, as occurred in the Almasri case.

The Constitutional Court points out, first and foremost, that sincere cooperation is the defining feature of the system set out in the Rome Statute (the treaty establishing the International Criminal Court). This cooperation underpins relations between the State Party and the International Criminal Court and also applies domestically to relations between the government authority responsible for receiving requests from the International Criminal Court and the judicial authority tasked with assessing them. ‘In relation to this model,’ the judgment states, ‘the provisions laid down in Articles 2 and 4 of Law No. 237 of 2012 prove to be at odds with it.’

Furthermore, ‘the referring court’s complaints are well-founded in criticising the fact that the Minister of Justice has been assigned a role lacking any appropriate criteria to guide and define its exercise, including in terms of time, in accordance with the established principles of immediacy’.

The Council points out that, whilst the law does indeed oblige the Minister to act on requests without delay, it does not avert the risk of prolonged inaction, ‘giving rise to uncertainties that jeopardise cooperation with the International Criminal Court itself, nor does it place the minister’s modus agendi within the framework of a procedural sequence in which the timeframes are strictly predetermined and the grounds for any refusal must be set out, in equally prompt terms’.”